Citation Nr: 0617119
Decision Date: 06/12/06 Archive Date: 06/26/06
DOCKET NO. 00-03 696 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a higher initial rating for degenerative disc
disease of the lumbar spine, evaluated as 10 percent
disabling prior to May 8, 1993 and 20 percent disabling
thereafter.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The veteran served on active duty from August 1989 to May
1990.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an adverse rating decision by the Houston,
Texas, Regional Office (RO) of the Department of Veterans
Affairs (VA). In a January 1999 rating decision, the RO
granted service connection for degenerative disc disease of
the lumbar spine, and assigned an initial 10% rating
effective to the date of claim; May 19, 1990. The RO
continued a 10% rating in a March 1999 rating decision. In
July 1999, the veteran filed his notice of disagreement (NOD)
with respect to the 10% rating assigned referring to his
lumbar spine symptoms over the last nine years. On this
record, the Board finds that the veteran has appealed the
initial rating assigned for his lumbar spine disability. See
Fenderson v. West, 12 Vet. App. 119 (1999) (where an appeal
stems from an initial rating, VA must frame and consider the
issue as to whether separate or "staged" ratings may be
assigned for any or all of the retroactive period from the
effective date of the grant of service connection in addition
to a prospective rating).
The veteran has raised a claim of entitlement to service
connection for disability of the thoracic spine as well as a
scar in the area of the thoracic spine. See Informal Hearing
Presentation dated March 2, 2006. The RO has not addressed
these issues in a rating decision. Prior to regulatory
changes on September 23, 2002, the dorsal (thoracic) and
lumbar spinal segments were separately evaluated. See
generally 38 C.F.R. § 4.71a, Diagnostic Codes 5291, 5292
(1990-2002). The new regulatory changes evaluate the
thoracolumbar spine as one spinal segment. See 38 C.F.R. §
4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a,
Diagnostic Code 5243 (2003-05). Per regulation, the Board
will evaluate the thoracic spine as part and parcel of
service connected disability effective September 23, 2002.
The issue of entitlement to service connection for disability
of the thoracic spine for the time period prior to the
regulatory change is not on appeal. Therefore, the Board
refers to the RO the issues of entitlement to service
connection for disability of the thoracic spine, and
entitlement to service connection for scar in the area of the
thoracic spine.
FINDINGS OF FACT
1. For the time period prior to May 8, 1993, degenerative
disc disease of the lumbar spine was manifested by pain and
restricted range of motion with no chronic neurologic
deficits; his overall limitation of motion and intervertebral
disc syndrome (IVDS) symptoms were no more than mild in
degree.
2. For the time period on and after May 8, 1993,
degenerative disc disease of the lumbar spine was manifested
by pain and restricted range of motion with no chronic
neurologic deficits; his overall limitation of motion and
IVDS symptoms were no more than moderate in degree.
CONCLUSION OF LAW
The criteria for a higher initial rating for degenerative
disc disease of the lumbar spine, evaluated as 10 percent
rating prior to May 8, 1993 and 20 percent disabling
thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107(b),
5110(g) (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26,
4.71a, Diagnostic Code 5292, 5293 (1995-2002); 38 C.F.R.
§ 4.71a, Diagnostic Code 5243 (2003-05); 38 C.F.R. § 4.71a,
General Rating Formula for Diseases and Injuries of the Spine
(2004-05).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran claims entitlement to higher initial ratings for
his lumbar spine disability. Historically, he received in-
service treatment for mechanical low back pain with mild
degenerative joint disease of the lumbosacral spine. On his
initial VA examination on June 22, 1990, he reported a
history of increased back pain with left lower extremity
tingling upon strenuous exercise. His physical examination
showed limited range of motion in the lower back secondary to
pain, but range of motion findings were not provided.
Additional significant findings included mild loss of
sensation at the left L5 dermatome and a positive straight
leg raise test at 80? bilaterally. His reflexes were within
normal limits. An x-ray examination demonstrated mild loss
of lumbar lordosis with narrowing at the L5-S1 disc space.
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to a higher initial rating for degenerative disc
disease of the lumbar spine, evaluated as 10 percent
disabling prior to May 8, 1993 and 20 percent disabling
thereafter.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The veteran served on active duty from August 1989 to May
1990.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an adverse rating decision by the Houston,
Texas, Regional Office (RO) of the Department of Veterans
Affairs (VA). In a January 1999 rating decision, the RO
granted service connection for degenerative disc disease of
the lumbar spine, and assigned an initial 10% rating
effective to the date of claim; May 19, 1990. The RO
continued a 10% rating in a March 1999 rating decision. In
July 1999, the veteran filed his notice of disagreement (NOD)
with respect to the 10% rating assigned referring to his
lumbar spine symptoms over the last nine years. On this
record, the Board finds that the veteran has appealed the
initial rating assigned for his lumbar spine disability. See
Fenderson v. West, 12 Vet. App. 119 (1999) (where an appeal
stems from an initial rating, VA must frame and consider the
issue as to whether separate or "staged" ratings may be
assigned for any or all of the retroactive period from the
effective date of the grant of service connection in addition
to a prospective rating).
The veteran has raised a claim of entitlement to service
connection for disability of the thoracic spine as well as a
scar in the area of the thoracic spine. See Informal Hearing
Presentation dated March 2, 2006. The RO has not addressed
these issues in a rating decision. Prior to regulatory
changes on September 23, 2002, the dorsal (thoracic) and
lumbar spinal segments were separately evaluated. See
generally 38 C.F.R. § 4.71a, Diagnostic Codes 5291, 5292
(1990-2002). The new regulatory changes evaluate the
thoracolumbar spine as one spinal segment. See 38 C.F.R. §
4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a,
Diagnostic Code 5243 (2003-05). Per regulation, the Board
will evaluate the thoracic spine as part and parcel of
service connected disability effective September 23, 2002.
The issue of entitlement to service connection for disability
of the thoracic spine for the time period prior to the
regulatory change is not on appeal. Therefore, the Board
refers to the RO the issues of entitlement to service
connection for disability of the thoracic spine, and
entitlement to service connection for scar in the area of the
thoracic spine.
FINDINGS OF FACT
1. For the time period prior to May 8, 1993, degenerative
disc disease of the lumbar spine was manifested by pain and
restricted range of motion with no chronic neurologic
deficits; his overall limitation of motion and intervertebral
disc syndrome (IVDS) symptoms were no more than mild in
degree.
2. For the time period on and after May 8, 1993,
degenerative disc disease of the lumbar spine was manifested
by pain and restricted range of motion with no chronic
neurologic deficits; his overall limitation of motion and
IVDS symptoms were no more than moderate in degree.
CONCLUSION OF LAW
The criteria for a higher initial rating for degenerative
disc disease of the lumbar spine, evaluated as 10 percent
rating prior to May 8, 1993 and 20 percent disabling
thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107(b),
5110(g) (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26,
4.71a, Diagnostic Code 5292, 5293 (1995-2002); 38 C.F.R.
§ 4.71a, Diagnostic Code 5243 (2003-05); 38 C.F.R. § 4.71a,
General Rating Formula for Diseases and Injuries of the Spine
(2004-05).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran claims entitlement to higher initial ratings for
his lumbar spine disability. Historically, he received in-
service treatment for mechanical low back pain with mild
degenerative joint disease of the lumbosacral spine. On his
initial VA examination on June 22, 1990, he reported a
history of increased back pain with left lower extremity
tingling upon strenuous exercise. His physical examination
showed limited range of motion in the lower back secondary to
pain, but range of motion findings were not provided.
Additional significant findings included mild loss of
sensation at the left L5 dermatome and a positive straight
leg raise test at 80? bilaterally. His reflexes were within
normal limits. An x-ray examination demonstrated mild loss
of lumbar lordosis with narrowing at the L5-S1 disc space.
He was given a diagnosis of disc herniation possible at L5.
VA examination on March 27, 1993 included the veteran's
report of intermittent low back pain with numbness and
tingling sensation in the left thigh and left calf. His
symptoms were aggravated by being in awkward positions,
prolonged standing, bending or lifting. He obtained some
relief of his pain with Nuprin. On neurologic examination,
his gait as well as toe and heel walking were normal. His
motor examination revealed normal tone with no atrophy or
fasciculation. He had 5/5 strength throughout although there
was some evidence of give-way in the left leg below the knee
that was somewhat greater in the L5-S1 distribution. There
was normal pinprick in the right lower extremity. Vibration
showed mild decrease in the left big toe and normal on the
right. Deep tendon reflexes at the knee were 1+ on the right
and 2 on the left. His ankle jerks were 3 bilaterally and
plantar reflexes were flexor bilaterally. His straight leg
raise produced lower back pain but no radicular symptoms. He
was given the following impressions:
1. CHRONIC LOW BACK PAIN. THIS VETERAN HAS A
HISTORY OF A FALL WHILE IN THE MILITARY SERVICE
WHICH APPARENTLY RESULTED IN A HERNIATED DISC.
HE CONTINUES TO HAVE SOME SYMPTOMS THAT MAY BE
SUGGESTIVE OF RADICULAR COMPONENT WITH NUMBNESS
AND TINGLING.
2. NEUROLOGIC EXAM SHOWS SOME DECREASE SENSATION
IN THE LEFT LOWER EXTREMITY. NEUROLOGIC EXAM IS
NOT PARTICULARLY REVEALING FOR THE SIGHT OF ROOT
INVOLVEMENT, ALTHOUGH THERE IS DECREASED
SENSATION IN THE LEFT LEG WHICH MAY BE IN THE
LOWER LUMBOSACRAL ROOT DISTRIBUTION.
The examiner recommended that a nerve conduction velocity and
electromyography (NCV/EMG) study be performed to document
evidence of root involvement.
On VA spine examination on May 8, 1993, the veteran reported
low back pain with intermittent numbness down to the left
thigh and left leg. He could not sit for prolonged periods
of time, and avoided heavy lifting or carrying. On physical
examination, his gait as well as toe and heel gait were
satisfactory. There was mild spasm of the paravertebral
musculature, especially to the left. He had forward bending
to 75?, extension to neutral, bending to the right 25?, and
bending to the left 30?. The overall alignment of the lumbar
spine was normal. His deep tendon reflexes were 2+ symmetric
at the knee, 2+ at the right ankle and 1+ at the left ankle.
There was decreased sensation in the 1st web space of the
left foot. His straight leg raise test was positive on the
left, especially with dorsiflexion of the left foot. He had
a negative straight leg test on the right. Motor strength
was 5/5 of the quadriceps, the right extensor hallucis longus
(EHL) and gastrocsoleus. He had 4+/5 strength of the left
EHL and left gastrocsoleus. X-ray examination demonstrated
mild to moderate narrowing at L5-S1. He was given a
diagnosis of herniated nucleus pulposus with left S1
radiculopathy that was moderately symptomatic. The examiner
also provided the following commentary:
NOTE: History, clinical examination, and
radiographs are consistent with his diagnosis,
because previous consultants have ordered a
magnetic resonance and electrodiagnostic test. I
recommend that these test be scheduled. If these
tests confirm pathology, than the diagnosis is
further strengthened.
On VA neurologic examination on May 18, 1993, the veteran
reiterated a history of low back pain that occasionally
radiated to the left mostly to the left thigh and not going
as far as the left foot. The later part of his calf was
occasionally affected. He indicated that he could still run
for some distance, but walking and standing for prolonged
periods of time brought on pain. His occupation involved a
great deal of sitting, and he occasionally changed position
to relieve pain that developed. On physical examination, he
moved well with a normal gait. He was able to get off and on
the examination table without any difficulty. His straight
leg raising was normal up to 80?. He was almost able to
touch his toes on forward bending with no muscle spasm found.
Examination of the lower extremities revealed no atrophy or
focal weakness. His reflexes were obtainable and equal. His
sensory examination showed some doubtful area of diminution
of sensation on the inner border of the "right" calf. The
examiner provided the following impression:
THE VETERAN DOES NOT HAVE ANY SIGNIFICANT
NEUROLOGICAL FINDINGS, EXCEPT FOR SUBJECTIVE AREA
OF DIMUNITION OF SENSATION OVER THE MEDIAL PART
OF THE LEFT CALF.
IN THE ABSENCE OF ANY POSITIVE FINDINGS AND THE
LENGTH OF HISTORY IT IS UNLIKELY THAT WE ARE
DEALING WITH ANY KIND OF MAJOR DISORDER IN THE
BACK NEEDING SURGICAL INTERVENTION. THE VETERAN
HAS SUBJECTIVE PAIN IN HIS LOW BACK WHICH IS
RELATED TO THE INJURY SUSTAINED IN ACTIVE
SERVICE. HOWEVER, THE PAIN AT THE MOMENT APPEARS
TO BE MOSTLY MECHANICAL AND MIGHT WELL IMPROVE
WITH CONSERVATIVE TREATMENT INCLUDING PROPER
EXERCISES AND STRENGTHENING OF THE BACK MUSCLES
AND PHYSICAL THERAPY.
IT IS UNLIKELY THAT FURTHER INVESTIGATION MIGHT
THROW MORE LIGHT ON THIS PROBLEM. CERTAINLY THE
M R I WHICH HAS BEEN SCHEDULED, IS UNLIKELY TO
HELP. THIS APPOINTMENT HAS BEEN CANCELLED. AS
MENTIONED ABOVE, THE SURGERY IS MOST PROBABLY NOT
INDICATED. HOWEVER AN E M G HAS BEEN SCHEDULED
AND IT MIGHT HELP IN CLARIFYING THE MATTER
FURTHER AND EXCLUDING THIS SPECIFIC NERVE ROOT
COMPRESSION. ELECTROMYOGRAM WILL BE DONE AND THE
VETERAN SHOULD BE FOLLOWED-UP AT THE NEUROLOGY
DEPARTMENT AFTERWARDS.
IN CONCLUSION MY OPINION IS THE VETERAN DOES HAVE
SOME MECHANICAL PAIN MOSTLY RELATED TO THE INJURY
SUSTAINED DURING THE SERVICE, NOT NEEDING
ANYTHING MORE THAN SUPPORTIVE AND CONSERVATIVE
THERAPY FOR HIS BACK.
An NCV/EMG study conducted in May 1993 was interpreted as
normal with no electrophysiologic evidence of a nerve root
lesion.
On August 25, 1995, the veteran underwent VA spine
examination. He reported daily low back pain that was
increased in the morning, and somewhat relieved by rest. On
examination, his lumbar spine revealed a negative Patrick's
test bilaterally. His straight leg raising test was negative
to 90? bilaterally with a negative Lasegue's sign. There was
a 11/2-inch atrophy of the left thigh and 1/2-inch atrophy of the
left calf. His deep tendon reflexes were 1+ at the patellar
and Achilles reflexes absent pathologic reflexes. He had
pain on palpation of the iliolumbar ligaments bilaterally
that reproduced much of his pain. His extensor hallucis
longus was rated 5+/5 bilaterally. X-ray examination of the
lumbar spine appeared normal. The examiner offered diagnoses
of acute strain of the lumbosacral spine, and herniated
intervertebral disc at L5-S1 by history. The examiner
commented that the final diagnosis of herniated disk should
be held in obeyance until an MRI examination was performed.
An MRI examination of the lumbar spine was performed in
September 1995. This examination was interpreted as showing
minimal degenerative changes at T10-11, T11-12, and L5-S1.
There was no focal disk protrusion or spinal or foraminal
stenosis. The vertebral body heights and conus appeared
normal.
The veteran underwent additional VA examination on January
19, 1999. He described low back discomfort, primarily
tightness in the lumbar spine, two times a week. His
symptoms were increased with running or basketball, and he
remained sore for two days thereafter. His symptoms did not
interfere with his work, although prolonged standing at work
might result in some increased low back pain. On
examination, he had "normal" range of motion of the lumbar
spine with forward flexion to 60?, backward extension to 15?,
and side bending to 25? bilaterally. Toe and heel walking
were normal. Wadell's signs were significant for symptom
amplification and nonorganic pain behaviors in four out of
five areas tested, including low back pain with concerted
truncal pelvic rotation, low back pain with axial loading of
the cervical spine, straight leg testing discrepancy, and low
back pain with trochanteric compression. His neurologic
examination revealed physiologic and symmetrical reflexes,
strength in both lower extremities. Internal and external
rotation of the hips were normal, pulses were normal, and
straight leg raising test was negative bilaterally. X-ray
examination of the lumbar spine showed some mild degenerative
change at L5-S1 with slightly diminished disk height. The
examiner further commented:
"[The veteran's] symptoms are minimal at this
time and certainly do not appear to interfere
significantly with his usual occupation and only
impair minimally his daily activities."
An RO rating decision dated January 1999 granted service
connection for degenerative disc disease of the lumbar spine,
L5-S1, and assigned an initial 10% evaluation under
Diagnostic Code (DC) 5293.
An RO rating decision dated September 1999 increased the
evaluation for degenerative disc disease of the lumbar spine,
L5-S1, to 20% disabling under DC 5293 effective May 8, 1993.
In pertinent part, a VA clinic record dated May 23, 2000
recorded the veteran's report of an acute exacerbation of
chronic low back pain (lbp) with intermittent numbness in the
left leg. His physical examination was significant for deep
pain across the low back with paraspinal muscle spasm. His
neurologic examination was intact with a negative straight
leg raise (SLR) test. He was prescribed Motrin and Robaxin.
The veteran underwent a neurologic examination by a private
provider of treatment on June 1, 2000. He reported lower
back pain and stiffness with intermittent numbness of his
left leg, mainly of his toes. His symptoms increased with
sleeping and sitting. On physical examination, there was
reduced flexion to 60? and extension to 15? apparently
because of lower back pain and spasm. There was mild point
tenderness and spasm in the lumbar spine. There was full
strength in all muscle groups tested with normal tone and
muscle mass throughout. Reflexes were 2+ and symmetric in
the knees and right ankle, and 1+ in the left ankle. Toes
were downgoing to plantar stimulation and Chaddock's maneuver
bilaterally. Sensory examination was mildly subjectively
reduced in the vicinity of the left knee, although it was
poorly reproducible. Otherwise, he was intact to light
touch, temperature, pinprick, vibratory sense and
proprioception. He had a normal toe, heel and tandem walk
without any evidence of weakness or disequilibrium.
Romberg's sign was absent. He was given an impression of
chronic low back pain and rule out herniated nucleus pulposus
(HNP). An EMG study of the left lower extremity performed
later that day was interpreted as normal.
In June 2000, the veteran testified to low back pain that
precluded him from participating in activities such as
basketball and football with his children. His back pain
interfered with his work in the field of electronics. He
described a numbness, tightening and tingling sensation in
his left lower extremity. His symptoms interfered with his
ability to sleep.
On VA orthopedic examination on August 9, 2001, the veteran
reported tightness in the lower back on a daily basis with
occasional tingling in the left hamstrings. He took Alleve
and used a back brace. On physical examination, he
demonstrated "normal" range of motion measured as 60? of
flexion, 10? of extension, and 25? of side bending
bilaterally. He complained of pain at the extremes of
motion. His toe and heel walking were normal. His
neurological examination was nonfocal with physiologic and
symmetrical reflexes, strength and sensation of both lower
extremities. Internal and external rotation of the hips were
within normal limits. His pulses were within normal limits.
Straight leg raising test was negative bilaterally. His calf
circumferences were symmetrical. X-ray examination
demonstrated mild evidence of degenerative change at L5-S1.
He was given an impression of mild degenerative disc disease
of the lumbar spine. The examiner also provided the
following opinion:
1. Once again it appears that functional
limitations if any caused by the appellant's
degenerative disc disease of the lumbar spine is
minimal.
2. The service connected low back disability
appears to involve only the joint structure with
no significant involvement of the muscle and
nerves.
3. There is no evidence of weakened motion,
excess fatigability or incoordination which
affect the ability of the appellant to perform
average employment in a civil occupation.
4. With respect to the subjective complaints of
pain, the veteran complains of pain on motion on
maximum motion and flexion and side bending.
There is no evidence of muscle atrophy or changes
in the condition of the skin indicative of
disuse.
5. There is no obvious other medical or
psychological problems that have an impact on the
functional capacity of the veteran.
A VA clinic record dated January 31, 2004 included veteran's
report of chronic low back pain exacerbated with cold
weather. He had a tingling sensation in the left side of his
leg. Physical examination demonstrated normal (nl) range of
lumbar spine motion without any significant orthopedic or
neurologic findings. He was given an assessment of chronic
back pain and prescribed Ibuprofen, a "Gi" prophylaxis, a
muscle relaxer for bedtime, and Tylenol #3 for breakthrough
pain.
In June 2004, the veteran submitted statements from his
fiancé, children, best friend, brother, sister, and mother
attesting to his symptoms of chronic low back pain since his
discharge from service. He was observed to undergo treatment
involving light exercise, massages, heating pads and strong
medication. He had difficulty sleeping, and limited his
activities due to his back pain.
On June 7, 2004, the veteran underwent VA orthopedic
examination with benefit of review of his claims folder. He
described a progressive worsening of low back pain with daily
flare-ups of pain. He usually used Motrin for pain relief
but occasionally used Tylenol #3. He worked through his
flare-ups of pain but experienced frustration and discomfort
on a daily basis. His symptoms were usually alleviated at
the end of the day when he had an opportunity to rest. On
physical examination, his thoracolumbar spine demonstrated
range of motion of 0-45? of flexion, 15? of extension, 20? of
lateral bending bilaterally, and 0-20? of lateral rotation
bilaterally. His spine demonstrated "full painless
motion." There were no additional limitations due to pain,
fatigue, weakness or lack of endurance following repetitive
motion. He had 5/5 motor strength in bilateral quadriceps,
hamstrings, ankle dorsiflexors, ankle plantar flexors, and
extensor hallucis longus. He had a negative straight leg
raise test bilaterally. He had a negative Goldwait's sign.
There was no clonus in the lower extremities with 2+ and
symmetric Achilles and plantar reflexes. He could walk on
his tiptoes and heels. He had a normal gait. X-ray
examination demonstrated some degenerative disk disease with
approximately 30-40% loss of disk space height between L5 and
S1 when compared to L4-L5. Additionally, he had severe loss
of disk height at T11-12. The examiner provided the
following assessment:
Based upon examination and review of his films,
his clinical findings are moderate with recurring
attacks and intermittent relief. His bilateral
lower extremities are neurovascularly intact.
IMPRESSION/DISCUSSION: I have examined this
patient and reviewed his Claims folder and also
discussed with him at length his history. It is
clear that he has some lumbar degenerative disk
disease between L5 and S1. [B]ut also very
notably and even more severe between T11 and T12
on the lateral x-ray of the thoracolumbar spine.
Range of motion is as stated above in the
physical examination. He has low back disability
which is moderate with recurring attacks and only
intermittent relief but always a baseline
discomfort present in his thoracolumbar spine.
As stated above, he is a copy machine repairman,
and although he continues to work every day and
his condition does not stop him from performing
his job. [H]e does get the flare-ups as stated.
[A]nd they are present every day; however the
flare-ups do not limit his range of motion. The
patient does get some fatigability but as stated
he is able to continue with his job throughout
the day. He does not experience any
incoordination that stops him from working
either. As stated previously, the patient does
take Tylenol No. 3 on occasion and most often
takes Motrin for relief of his flare-ups and to
ease himself at the end of the work day.
On June 16, 2004, the veteran underwent VA neurologic
examination with benefit of review of the claims folder. On
physical examination, motor function in both lower
extremities was normal with normal bulk, tone and strength.
There was sensory loss in the left leg in a stocking
distribution with non-physiological sharp borders. Straight
leg raise test was negative in the sitting position
bilaterally and positive in the supine position on the left
with pain radiating to the foot. An MRI examination
demonstrated bulging disk at L4-5, and the examiner commented
that it was very unlikely the MRI finding was the cause of
the veteran's symptoms. The examiner further stated that,
after review of the orthopedic examination report and based
on imaging, it was less likely than not that the causes of
the veteran's radicular/sciatic symptoms were related to
lumbar disc disease.
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. § 4.1 (2005). Separate
diagnostic codes (DC's) identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluations will be assigned if
the disability more closely approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2005). The determination of
whether an increased evaluation is warranted is to be based
on a review of the entire evidence of record and the
application of all pertinent regulations. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
The veteran bears the burden of presenting and supporting his
claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In
its evaluation, the Board shall consider all information and
lay and medical evidence of record. 38 U.S.C. § 5107(b)
(West 2002). When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Board shall give the
benefit of the doubt to the claimant. Id.
VA has defined competency of evidence, pursuant to 38 C.F.R.
§ 3.159(a), as follows:
(1) Competent medical evidence means
evidence provided by a person who is
qualified through education, training, or
experience to offer medical diagnoses,
statements, or opinions. Competent medical
evidence may also mean statements conveying
sound medical principles found in medical
treatises. It would also include statements
contained in authoritative writings such as
medical and scientific articles and research
reports or analyses.
(2) Competent lay evidence means any
evidence not requiring that the proponent
have specialized education, training, or
experience. Lay evidence is competent if it
is provided by a person who has knowledge of
facts or circumstances and conveys matters
that can be observed and described by a lay
person.
The veteran's claim for a higher initial rating for his
lumbosacral spine disability stems from service connection
claim with his initial rating effective to May 19, 1990.
Effective September 23, 2002, VA revised the criteria for
evaluating Intervertebral Disc Syndrome (IVDS). See 67 Fed.
Reg. 54345-54349 (Aug. 22, 2002). Effective September 26,
2003, VA revised the criteria for evaluating diseases and
injuries of the spine. See 68 Fed. Reg. 51454-51458 (Aug.
27, 2003). The Board may only consider and apply the "new"
criteria as of the effective date of enactment, but may apply
the "old" criteria for the entire appeal period.
38 U.S.C.A. § 5110(g) (West 2002); VAOPGCPREC 3-2000 (Apr.
10, 2000). The veteran has been advised of these changes in
law in his supplemental statements of the case (SSOC's).
The veteran's 10% rating in effect from May 19, 1990 to May
8, 1993 came under the 'old" criteria. This rating
represented lumbar spine symptoms consistent with slight
limitation of motion (DC 5292), mild attacks of IVDS (DC
5293), and lumbosacral strain with characteristic pain on
motion (DC 5295). See 38 C.F.R. § 4.71a (1990-2002). A
higher 20% rating was warranted for symptoms consistent with,
or more closely approximating, moderate limitation of lumbar
spine motion (DC 5292), moderate and recurring attacks of
IVDS (DC 5293) and lumbosacral strain with muscle spasm on
extreme forward bending, loss of lateral spine motion,
unilateral, in standing position (DC 5295). Id.
In evaluating musculoskeletal disabilities, the Board must
assess functional impairment and determine the extent to
which a service connected disability adversely affects the
ability of the body to function under the ordinary conditions
of daily life, including employment. 38 C.F.R. § 4.10
(2005). Ratings based on limitation of motion do not subsume
the various rating factors in 38 C.F.R. §§ 4.40 and 4.45,
which include pain, more motion than normal, less motion than
normal, incoordination, weakness, and fatigability. These
regulations, and the prohibition against pyramiding in 38
C.F.R. § 4.14, do not forbid consideration of a higher rating
based on a greater limitation of motion due to pain on use,
including flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206-
08 (1995). In other words, when rated for limitation of
motion, a higher rating may be assigned if there is
additional limitation of motion from pain or limited motion
on repeated use of the joint. A finding of functional loss
due to pain must be "supported by adequate pathology and
evidenced by the visible behavior of the claimant."
38 C.F.R. § 4.40 (2005). A little used part of the
musculoskeletal system may be expected to show evidence of
disuse, either through atrophy, the condition of the skin,
absence or normal callosity or the like. Id.
The preponderance of the evidence is against an initial
rating in excess of 10 percent for the time period prior to
May 8, 1993. The lay evidence included report of
intermittent low back pain and intermittent numbness and
tingling sensation in the left calf and thigh. His symptoms
were aggravated by use. He further reported some sensory
deficit in the left thigh. His range of motion loss was not
measured during this time period, but an observation was made
of limited range of motion secondary to back pain. VA
examination on May 8, 1993, measuring forward bending to 75?,
extension to neutral, bending to the right 25?, and bending
to the left 30?, demonstrated range of motion loss that was
no more than mild in degree. There was neither evidence of
muscle spasm on extreme bending nor loss of lateral spine
motion in standing position. He was given a questionable
diagnosis of herniated disc that was not supported by
subsequent NCV/EMG study and MRI examinations. In June 2004,
a VA neurologist opined that the veteran has not manifested
radicular/sciatic symptoms attributable to his IVDS. Later
VA opinion indicated that the veteran did not experience
significant weakness, fatigability, incoordination or
additional motion loss during flare-ups of disability. Thus,
even with consideration of 38 C.F.R. §§ 4.40 and 4.45, the
evidence of record preponderates against a rating in excess
of 10 percent under DC's 5292, 5293 and 5295.
The RO has established a 20 percent rating, effective May 8,
1993, due to IVDS with moderate and recurring attacks under
DC 5293. Under the old criteria, a higher 40% rating was
warranted for symptoms consistent with, or more closely
approximating, severe limitation of lumbar spine motion (DC
5292), severe, recurring attacks of IVDS with little
intermittent relief (DC 5293), and severe lumbosacral strain
with listing of whole spine to opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion (DC 5295).
The preponderance of the evidence is against a rating in
excess of 20 percent under the "old" criteria for any time
during the appeal period. The veteran has reported chronic
low back pain exacerbated daily with use and relieved with
rest. He is capable of working through his flare-ups of
pain. His lumbar spine motion measurements have ranged from
45-75º of flexion, neutral to 15 º of extension, 25º of right
bending, 25-30º of left bending, and 0-20º of rotation
bilaterally. VA examiners in August 2001 and June 2004 found
no evidence of weakened movement, excess fatigability,
incoordination or additional degree of motion loss. These
findings demonstrate lumbar spine motion loss that is no more
than moderate in degree. As such, the criteria for a higher
rating under DC 5292 is not warranted.
The veteran himself has described daily flare-ups of pain
alleviated with rest. In June 2004, a VA examiner medically
described his IVDS symptoms as moderate in degree. He has
reported intermittent symptoms of left lower extremity pain,
but diagnostic testing over the years has not identified a
nerve root lesion. In June 2004, a VA neurologist opined
that the veteran did not manifest radicular/sciatic symptoms
due to IVDS. The preponderance of the evidence demonstrates
that the veteran's IVDS symptoms are no more than moderately
disabling in degree with more than intermittent relief of
symptoms. As such, a higher rating under DC 5293 is not
warranted.
Finally, the veteran has been diagnosed with mechanical back
pain. As indicated above, the veteran's overall symptoms are
less than severe in nature absent evidence of listing of
whole spine to opposite side, positive Goldthwaite's sign,
marked limitation of forward bending in standing position,
loss of lateral motion with osteo-arthritic changes, or
abnormal mobility on forced motion. As such, the criteria
for a higher rating under DC 5295 have not been met.
Changes to the IVDS Code became effective September 23, 2002.
Effective September 26, 2003, VA revised the criteria for
evaluating diseases and injuries of the Spine which resulted
in a renumbering of the IVDS criteria to DC 5243. See 68
Fed. Reg. 51454-51458 (Aug. 27, 2003). This regulatory
change did not include any substantive change to the
provisions enacted in 2002. For purposes of this analysis,
the Board will refer to the current numbering of DC 5243 in
the discussion below.
The current criteria of DC 5243 evaluates IVDS
(preoperatively or postoperatively) on either the total
duration of incapacitating episodes over the past 12 months
or by combining under 38 C.F.R. § 4.25 separate evaluations
of its chronic orthopedic and neurologic manifestations along
with evaluations for all other disabilities, whichever method
results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5243
(2005).
For purposes of evaluations under 5243, "[c]hronic orthopedic
and neurologic manifestations" means orthopedic and
neurologic signs and symptoms resulting from IVDS that are
present constantly, or nearly so. 38 C.F.R. § 4.71a, DC
5243, NOTE 1 (2005). Orthopedic disabilities are rated using
evaluation criteria for the most appropriate orthopedic
diagnostic code or codes. Id. Similarly, neurologic
disabilities are rated separately using evaluation criteria
for the most appropriate neurologic diagnostic code or codes.
Id.
As held above, the veteran's chronic orthopedic
manifestations of IVDS during the appeal period have been
represented by limitation of motion of the lumbar spine that
is not more than moderate in degree. A 20% rating is
currently assigned for the orthopedic manifestations of IVDS
under the "old" criteria.
The veteran has reported symptoms of left lower extremity
tingling sensation of the left lower extremity with areas of
decreased sensation. His earlier examination reports
provided a diagnosis of possible disc herniation by history
with a history suggestive of a radicular component. However,
NCV/EMG studies in May 1993 and June were interpreted as
demonstrating normal findings. Additionally, MRI
examinations in September 1995 and June 2004 found no
evidence of a nerve root lesion. In June 2004, a VA examiner
provided opinion that the veteran did not manifest
radicular/sciatic symptoms due to IVDS. The preponderance of
the evidence demonstrates that the veteran does not have any
chronic neurologic manifestations of IVDS. An alternative
higher 40% rating may be considered under DC 5243 where there
have been incapacitating episodes of IVDS having a total
duration of at least 4 weeks during a 12 month period. An
incapacitating episode is defined as a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. 38 U.S.C.A. § 4.71a, DC 5243, NOTE (2005). The
record does not disclose during the appeal period any twelve-
month period where an episode of IVDS required treatment and
a prescription of bed rest by a physician for a period of at
least 4 weeks as required for consideration of an alternative
rating based upon the yearly duration of episodes of IVDS.
Effective September 26, 2003, VA revised the criteria for
evaluating diseases and injuries of the Spine. See 68 Fed.
Reg. 51454-51458 (Aug. 27, 2003). In pertinent part, the
only possible higher rating available for a chronic
orthopedic manifestation of lumbar spine disability under
these revised criteria would require a finding of forward
flexion of the thoracolumbar spine to 30 degrees or less; or,
favorable ankylosis of the entire thoracolumbar spine. The
range of motion findings during the appeal have all been
above 30 degrees of forward flexion with medical opinion that
the veteran did not experience any further limitation of
motion upon use. Even with consideration of 38 C.F.R.
§§ 4.40 and 4.45, the preponderance of the evidence
demonstrates that the veteran falls well short of the
criteria necessary for a higher rating. There is no
competent evidence of ankylosis of the lumbar spine. As
such, the regulatory changes in 2003 do not offer a more
favorable result in this case.
In so deciding, the Board has deemed the veteran as competent
to describe his symptoms of the lower back and extremities.
However, he is not shown to possess the requisite training to
attribute all symptoms of disability to his service connected
lumbar spine disability. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992); 38 C.F.R. § 3.159(a) (2005). The Board
attaches the greatest probative weight to the clinical
findings of the skilled, unbiased professionals who have been
trained at evaluating and diagnosing his condition as well as
the objective findings of the NCV/EMG and MRI studies.
Taking all the evidence into consideration, the Board finds
that the evidence of record preponderates against a higher
initial rating for his lumbar spine disability. Accordingly,
there is no doubt to be resolved in his favor. 38 U.S.C.A.
§ 5107(b) (West 2002); 38 C.F.R. § 4.3 (2005).
In reaching this determination, the Board has carefully
reviewed the record to ensure compliance with VA's statutory
and regulatory notice and assistance requirements.
38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West
2002).
Specifically, VA has a duty to notify a claimant (and his
representative) of any information, whether medical or lay
evidence or otherwise, not previously provided to VA that is
necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West
2002). As part of that notice, VA shall indicate which
portion of that information and evidence, if any, is to be
provided by the claimant and which portion, if any, VA will
attempt to obtain on behalf of the claimant. Id. A notice
consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. See Pelegrini v. Principi, 18
Vet. App. 112 (2004) (Pelegrini II). This "fourth element"
of the notice requirement comes from the language of
38 C.F.R. § 3.159(b)(1). Id. The Pelegrini II Court also
held that the language of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) require that a notice be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
Letters dated March 26, 2003 and May 19, 2004 satisfied
elements (1), (2), (3) and (4) as listed above. These
letters notified him of his and VA's respective
responsibilities for obtaining information and evidence under
the VCAA. More specifically, the documents explained that VA
would help him get such things as medical records, or records
from other Federal agencies, but that he was responsible for
providing any necessary releases and enough information about
the records so that VA could request them from the person or
agency that had them. He was advised that, in order to
substantiate his claim, "the evidence must show that your
service-connected condition has gotten worse" and "evidence
tending to show that you currently meet the criteria for the
next higher rating, which is severe limitation of motion; OR
severe recurring attacks of intervertebral disc syndrome with
intermittent relief; OR incapacitating episodes having a
total duration of at least four weeks but less than six weeks
during the past 12 months." He was further advised: "You
should send us copies of any relevant evidence you have in
your possession."
The statute and regulations regarding notice require that a
claimant be given the required information prior to VA's
decision on the claim, and in a form that enables a claimant
to understand the process, the information needed, and who is
responsible for obtaining that information. Mayfield v.
Nicholson, 05-7157 (Fed. Cir. Apr. 5, 2006). However, in
circumstances where such notice was not provided, the focus
must be directed as to whether the timing defect has resulted
in harmful error to the claimant. Id. See generally
38 C.F.R. § 20.1102 (2005) (error or defect in any decision
by the Board that does not affect the merits of the issue or
the substantive rights of the appellant shall be considered
harmless and not a basis for vacating or reversing such
determination).
In this case, the four content requirements of a VCAA notice
have been met, and any error in not providing a single notice
to the appellant covering all content requirements
constitutes harmless error in this case. See, e.g.,
38 C.F.R. § 20.1102 (2005). The claim was first adjudicated
prior to the passage of the current statutory and regulatory
notice and assistance requirements. See Pub. L. No. 106-475,
114 Stat. 2096 (2000). The claim was remanded by the Board
on February 23, 2001 in part for compliance with the new
revised notice and duty to assist provisions. Thereafter,
the above-mentioned notice letters were sent and the claim
was readjudicated. Because a higher rating has been denied,
any question as to the appropriate effective date is moot,
and there can be no failure-to-notify prejudice to the
veteran. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). Additionally, the rating decision on appeal, the
statement of the case (SOC), the supplemental statements of
the (SSOC's), the Board's remand directives and an additional
letter dated January 21, 2005 told him what was necessary to
substantiate his claim throughout the appeals process. In
fact, the rating decision on appeal, the SOC and the multiple
SSOC's provided him with specific information as to why his
claim was being denied, and of the evidence that was lacking.
There is no indication that any aspect of the notice
compliant language that may have been issued post-
adjudicatory has prevented the veteran from providing
evidence necessary to substantiate his claim and/or affected
the essential fairness of the adjudication of the claim.
Any further notice to the veteran would only result in a
delay in adjudicating the claims without any additional
benefit accruing to him. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
appellant are to be avoided). Under these circumstances,
adjudication of this appeal, without referral to the RO for
further consideration of the claim for further notice poses
no prejudice to the veteran. See Bernard v. Brown, 4 Vet.
App. at 394; VAOPGCPREC 16-92 (July 24, 1992).
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate a claim. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005). The RO
obtained service medical records. The RO also obtained VA
and private clinic records identified as relevant to the
claim on appeal. Furthermore, the veteran has been provided
multiple VA examinations, to include VA examination based
upon review of the claims folder as directed by the Board.
The evidence and information of record, in its totality,
provides the necessary information to decide the case.
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 4.2 (2005).
There is no reasonable possibility that any further
assistance to the appellant would be capable of
substantiating his claim.
ORDER
A higher initial rating for degenerative disc disease of the
lumbar spine is denied.
____________________________________________
C.W. Symanski
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs